Federal Communications Commission fcc 16-88 Before the Federal Communications Commission
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Federal Communications Commission FCC 16-88 Before the Federal Communications Commission Washington, D.C. 20554
DECLARATORY RULING Adopted: July 8, 2016 Released: August 4, 2016 By the Commission: Commissioner Rosenworcel approving in part, dissenting in part and issuing a statement; Commissioner O’Rielly issuing a statement. INTRODUCTIONToday, we confirm that school callers may lawfully make robocalls and send automated texts to student family wireless phones pursuant to an “emergency purpose” exception or with prior express consent without violating the Telephone Consumer Protection Act (TCPA).1 We similarly clarify that utility companies may make robocalls and send automated texts to their customers concerning matters closely related to the utility service, such as a service outage or warning about potential service interruptions due to severe weather conditions, because their customers provided consent to receive these calls and texts when they gave their phone numbers to the utility company. We therefore grant substantial relief to Blackboard, Inc.2 and Edison Electric Institute (“EEI”) and the American Gas Association (“AGA”) (collectively “EEI/AGA”)3 albeit on more narrow grounds than the parties seek. By tailoring relief to the narrow circumstances presented in these petitions, we ensure the TCPA does not thwart welcome and expected communications from schools and utilities without diluting the TCPA’s core consumer protections. BACKGROUNDThe Telephone Consumer Protection ActIn 1991, Congress enacted the TCPA to address certain calling practices that invade consumer privacy and threaten public safety.4 In relevant part, the TCPA and the Commission’s implementing rules prohibit: (1) making telemarketing calls using an artificial or prerecorded voice to residential telephones without prior express consent;5 and (2) making any non-emergency call using an automatic telephone dialing system (“autodialer”)6 or an artificial or prerecorded voice to a wireless telephone number without prior express consent.7 The TCPA expressly exempts from these prohibitions calls made for “emergency purposes.”8 If the call includes or introduces an advertisement or constitutes telemarketing, consent must be in writing. If an autodialed or prerecorded call to a wireless number is not for such purposes, consent may be oral or written.9 The Commission has concluded that the TCPA’s protections against unwanted calls to wireless numbers encompass both voice calls and text messages, including short message service (SMS) texts, if the call is made to a telephone number assigned to such service.10 Most recently and in light of increasing requests for clarification of the TCPA from businesses that robocall and text, the Commission resolved more than twenty petitions on a wide variety of TCPA issues.11 Particularly relevant for the instant cases, the Commission has stated that “persons who knowingly release their telephone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”12 In the ACA Declaratory Ruling, the Commission clarified that a party who provides his or her wireless number to a creditor as part of a credit application “reasonably evidences prior express consent by the cell phone subscriber to be contacted at the number regarding the debt.”13 In the case of healthcare providers, the Commission clarified that the provision of a phone number constitutes prior express consent if the covered entities are making calls within the scope of the consent given, and absent instructions to the contrary.14 The Commission also clarified that as a general matter consent must come from the number’s subscriber and not, for example, the consumer the robocaller “intended” to call if those parties are different.15 BlackboardOn February 24, 2015, Blackboard, Inc. (Blackboard) filed a request for a declaratory ruling that “all automated informational messages sent by an educational organization via a recipient’s requested method of notification are calls made for an ‘emergency purpose’ and thus outside the requirements of the [TCPA].”16 Blackboard provides “an interactive web portal available to its educational organization customers (usually an individual school or larger system covering several school locations), which allows each school to draft informational messages and distribute them as the school chooses.”17 Blackboard argues that “automated calls made for non-commercial purposes are distinguishable from telemarketing or solicitation calls under the TCPA” and such calls from educational institutions are “the types of informational messages that consumers want to receive on their wireless devices.”18 Blackboard cites a number of informational calls made by educational institutions that it argues should be considered sent for emergency purposes including: (1) “attendance” messages, which alert parents to an unexcused absence; (2) “emergency” messages, which alert the school community to a variety of emergency situations (e.g. weather, fire, health risk, threat situations); (3) “outreach” messages, which provide education-related information to parents regarding school activities (e.g., teacher conferences, back-to-school night); and (4) “simple survey” messages, which allow recipients to RSVP to events or provide input on an important issue.19 Blackboard also asks the Commission to declare that such informational messages sent to a wireless telephone number constitute a call made with “prior express consent” when “the wireless telephone number has been provided to the caller as a means of providing information” to the recipient, “even if the wireless telephone number later is in use by another consumer.”20 Finally, Blackboard seeks a declaratory ruling that “called party” as used in the TCPA and Commission’s rules refers to the “intended recipient” of the informational message.”21 Blackboard’s petition indicates that it provides technologies and products to educational, government, and business customers including mass notification services.22 The “Blackboard Connect” platform “is used primarily in the educational setting to enable schools to send mass notifications to parents, guardians, students, and faculty regarding emergency weather closures, threat situations, event scheduling, or to provide other important education-related information.”23 These messages “can be distributed as an automated/prerecorded telephone call to either a wireline or wireless telephone number, as a text message (or SMS) to a wireless device, or as an e-mail, and can be sent via all methods simultaneously if that option is selected by the school.”24 On March 23, 2015, the Consumer and Governmental Affairs Bureau sought comment on the Blackboard Petition.25 Ten parties filed comments and seven parties filed reply comments, including many schools.26 Several commenters support Blackboard’s petition, reiterating the arguments made therein.27 In particular, these commenters note the importance of automated technologies that allow educational institutions to send mass notifications to parents, students, and faculty regarding various school events and activities.28 Although many of these commenters contend they obtain prior express consent to send such messages, they note the difficulties in monitoring wireless telephone numbers that have been reassigned to other parties who may not be associated with the intended recipient.29 A few commenters oppose certain aspects of the petition.30 These commenters take issue with the broad nature of Blackboard’s request arguing it brings within the emergency-purpose exception a wide range of calls that do not constitute emergencies.31 Joe Shields notes that the TCPA does not treat informational calls differently from telemarketing calls in protecting wireless consumers from robocalls.32 National Consumer Law Center argues that low-income consumers who have plans with limited minutes must be protected from unwanted calls by restricting emergency calls to true emergencies.33 Randall Snyder contends that “the emergency exemption that Blackboard is seeking provides no value whatsoever, as the company claims to have already obtained prior express consent for automated calls and text messages and there is no need to obtain consent for legitimate automated emergency calls and text messages.”34 Snyder contends that technologies exist for any telecommunications company to eliminate, or at least greatly reduce, the number of misdirected calls that it automatically dials.35 Directory: edocs public -> attachmatch attachmatch -> Commissioner ajit pai attachmatch -> Before the Federal Communications Commission Washington, D attachmatch -> Before the Federal Communications Commission Washington, D attachmatch -> Before the Federal Communications Commission Washington, D attachmatch -> Before the Federal Communications Commission Washington, D attachmatch -> Before the Federal Communications Commission Washington, D attachmatch -> Federal Communications Commission fcc 15-77 Before the Federal Communications Commission attachmatch -> Statement of commissioner ajit pai Download 141.77 Kb. 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